Tag Archives: PPD

Kansas court holds adoption of AMA 6th violates due process

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The Kansas Supreme Court undid one small part of Sam Brownback’s legacy

The Kansas Supreme Court ruled on Friday that adoption of the American Medical Association Guides to Permanent Impairment, Sixth Edition (AMA Sixth) to pay permanent injuries under their workers’ compensation act violated constitutional rights to due process because it gave injured workers an inadequate remedy for work injuries.

The decision in Johnson v. US Food Service came on the heels of a recent Oklahoma decision that upheld the constitutionality of the AMA Sixth in that state’s workers’ compensation law. Injured workers in Kansas were likely helped by the Kansas applying heightened scrutiny in assessing a due process violation rather than applying what amounts to rational basis scrutiny like the Oklahoma court did in upholding their use of the AMA Sixth.

The Kansas court also seemed to be persuaded by findings of fact and legislative history about the problems with the AMA Sixth in how it compensates work injuries. The court was particularly persuaded by findings that the AMA Sixth lead to lower impairment ratings because it measured impairment based on inability to do general life activities rather than activities related to working. The Kansas decision throwing out the use of the AMA 6th will likely be persuasive to trial courts in other states when deciding whether impairment under the AMA 6th sufficiently compensates injured workers. 

The decision was also premised on the fact that injured workers give up the right to a trial by jury to pursue a tort claim against the employers to receive workers’ compensation benefits. According to the Kansas court, compensating employees under the AMA 6th when combined with other recent changes to Kansas workers’ compensation law meant that employees were giving up too much in exchange for not being able to sue their employers and have a trial by jury.

Last month, I posted “Appellate courts aren’t going to save workers’ compensation.” Maybe I was too pessimistic in that assessment considering Johnson case. But a closer reading of the Johnson case shows my thesis is still sound. The Kansas court went through an exhaustive list of anti-worker reforms made by the Kansas legislature in 2011 and 2013 to that state’s workers’ compensation laws.  With the exception of using the AMA 6th, those anti-worker reforms are still law in Kansas. I hope the decision in Johnson will help advocates for injured workers rollback other negative changes made to workers’ compensation law in Kansas. But the changes to Kansas’ workers’ compensation laws came through the political arena and victories in the political arena are the only sure way to insure fair compensation for injured workers in Kansas and in the rest of the country.

I agree with the outcome and most of the reasoning supporting the Johnson decision. But I disagree with the court’s literary flourish arguing that injured workers aren’t heard in adminisatsrive hearings or bench  trials. The majority of my court room experience comes in what amount to bench trials in the Nebraska Workers’ Compensation Court. In my experience the injured worker gets to tell their story and — just as important – management witnesses are forced to answer for their treatment of injured workers as it relates to issues being tried. At least in Nebraska, trials in worrkers’ compensation cases can address that emotional need for justice outside fiancial compensation. But for most people, the finanical outcome of a case is more important than the process used to obtain the outcome.

Thomas Robinson, editor of the leading treatise on workers’ compensation law, stated the Kansas court’s focus on assigning fault for an injury misses the point of workers’ compensation which means defined compensation for a work injury regardless of fault. I agree with this point. I’ve written about the role of fault in the suppodedly no fault world of workers’ compnesation. I will be interested to read Robinson’s take on fault and workers’ compensation.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Constitutional law, Kansas, Nebraska, Workers Compensation and tagged , , , , , , .

Caught in the TTD/PPD squeeze

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Consider these common scenarios after a serious work injury.

An injured employee is done recovering from a surgery but can’t go back to work until they complete a Functional Capacity Evaluation.

An injured employee is done recovering from a spinal fusion surgery and is unable to go back to their old job. Even if on the odd chance they could go back to their old job, they have been off work so long that any job protections available under the Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) have long passed.

In both cases an injured worker is likely 1) not getting temporary total disability (TTD) 2) Is not earning wages and 3) Has not started receiving any permanent partial disability (PPD) or permanent total disability (PTD).

Some call it “the gap”, some call it “the squeeze”, but whatever you call it, it’s a painful situation to be in to not have any money coming in after a recovery from an injury.

Workers’ compensation laws in Nebraska are supposed to be interpreted in favor of the employee to effectuate the beneficent purpose of relieving employees of the economic effects of a work injury. How can employers/insurers squeeze injured employees like this?

One answer is that case law may allow this. I am going to cut and paste in the relevant language case law into this blog post in italics. I am going to bold face the language insurers rely on to squeeze injured employees.

Temporary disability ordinarily continues until the claimant is restored so far as the permanent character of his or her injuries will permit. Compensation for temporary disability ceases as soon as the extent of the claimant’s permanent disability is ascertained. In other words, temporary disability should be paid only to the time when it becomes apparent that the employee will get no better or no worse because of the injury.

The term “maximum medical improvement,” or MMI, has been used to describe the point of transition from temporary to permanent disability.  Once a worker has reached MMI from a disabling injury and the worker’s permanent disability and concomitant decreased earning capacity have been determined, an award of permanent disability is appropriate.

The argument underlying the squeeze is that TTD ends when a doctor states you have plateaued medically, but you can’t get permanent disability until your disability has been ascertained. This could mean waiting for a permanent impairment rating or it could mean waiting for an FCE, having a doctor endorse the results and then having a vocational counselor determine disability. As Roger Moore at our office pointed out in 2015, the latter process can last months.

I think allowing insurers to exploit the gap between TTD and PPD is an incorrect reading of the law. As I pointed out earlier, it doesn’t effectuate the beneficent purpose of the Nebraska Workers’ Compensation Act. If TTD ends when disability is ascertained, doesn’t disability actually need to be ascertained through assigning either permanent impairment or permanent restrictions and/or a determination of loss of earning power before TTD payments end? Finally, if MMI signals the transition between temporary and permanent disability benefits, isn’t MMI merely the beginning of the end of temporary benefits rather than the end of temporary benefits? Doesn’t the term “transition” account for some time period when disability is being ascertained?

The temporary/permanent squeeze is an issue of great interest to me. While I think the squeeze is a misreading of the law, I am not certain a trial judge or appellate court would see things my way. The issue may have to be resolved in the Legislature, but the issue is one that should be addressed in litigation. I am one attorney who is willing to litigate the issue on behalf of an injured employee.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Nebraska, Workers Compensation and tagged , , , , , , , .

Can I Collect Unemployment and Workers’ Compensation Benefits at the Same Time?

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In Nebraska, an injured worker who is laid off, fired or leaves a job for good cause can collect unemployment benefits and still receive Temporary Partial Disability (TPD) benefits and Permanent Partial Disability (PPD) benefits from the workers’ compensation insurance company. The Nebraska Labor Department unemployment law does not allow a worker to receive unemployment during the same week the person is paid Temporary Total Disability (TTD) workers’ compensation payments.

To receive unemployment benefits, the injured worker must be ready, willing and able to work.  As long as injured worker is ready, willing and able to work within one’s own restrictions, that worker can receive unemployment benefits during the same week that they are entitled to TPD and PPD benefits. 

If a person is totally unable to work and getting TTD benefits, that person cannot receive unemployment benefits since they, by definition, are not ready, willing and able to work.

Under the workers’ compensation laws, it is also important to remember that compensation benefits cannot be offset with what is paid under the unemployment benefits. For guidance, please refer to Nebraska Statute 48-130 that supports this rule of law.

If you have been laid off or terminated, you are still entitled to workers’ compensation benefits in the above situations.

If you have any questions, call us for a free consultation.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, Workers' Compensation and tagged , , , , , , .

How Do Iowa Workers’ Compensation Permanent Benefits Work?

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Iowa’s workers’ compensation laws classifies permanent injuries to the neck, back, shoulders or hips are as unscheduled, or body as a whole, disabilities. Most other injuries are treated as scheduled member injuries, for which an injured worker can still recover permanent partial disability (PPD) benefits.

A permanent partial disability is a permanent injury that does not totally keep the injured person from eventually returning to work.

How is my percentage of disability determined in Iowa scheduled member cases? 

This is initially determined by a doctor chosen by your employer or your employer’s insurance company. The doctor typically looks at a medical text to determine what percentage is appropriate. If that physician assigns you a rating of permanent disability that you think is too low, you have the right to be examined by another doctor whom you choose. The cost of this second opinion is also paid by your employer or their insurance company. However, you must first submit an application to the Iowa Workers’ Compensation Commission to get this second opinion.

How much will I receive in permanent partial disability payments? 

The amount of money you receive as a PPD benefit payment depends on several things. First, your average weekly income before the accident or injury affects the amount of your weekly benefits. Injured workers receive 80 percent of their previous weekly pay, up to a maximum benefit amount of $1,419 each week. All workers entitled to PPD benefits will receive a minimum weekly payment of $270, even if their weekly earnings were lower than that amount.

Second, the amount of your disability also affects the amount of benefits. Scheduled members are assigned a number of total weeks by statute. You simply apply the percentage of disability assigned by the doctor to the total weeks. The result is how many weeks the worker must be paid the full weekly benefit.

How is my percentage of disability determined in Iowa body as a whole cases? 

Body as a whole injuries have a different compensation package. An injured worker with a permanent body as a whole injury receives a maximum of 500 weeks of PPD benefits. You will receive benefits according to the lost earning capacity. For example, if a back injury left you with a 15 percent earning capacity loss, you will receive benefits for 15 percent of the 500 weeks, or 75 weeks at the full weekly rate discussed above.

When determining the percentage of lost earning capacity, the Commissioner will weigh a number of factors:

  • age of the worker;
  • the employer’s ability to accommodate a return to work;
  • lack of motivation to find a job;
  • whether the earning capacity changed after the healing period;
  • psychological conditions impacting ability to work;
  • employee’s work experience, educational background, and training before the injury;
  • functional impairment or impairment rating caused by injury;
  • whether the worker can speak English or has tried to learn English;
  • inability to engage in other employment because of injury, despite making bona fide efforts to do so;
  • has the worker retired; and
  • workers’ refusal to submit to medical treatment or surgery.

None of the factors are determine the issue alone, and all factors will be considered as a whole when determining the earning capacity rate. Typically, a vocational counselor must be hired to evaluate these factors and how they impact a workers’ earning capacity. Anyone with permanent restrictions from a work injury should contact an attorney to ensure they receive all of the permanent benefits to which they are entitled.

Whole body injuries can affect the rest of your life and be incapacitating. The attorneys at Rehm, Bennett & Moore can make sure you receive all of the benefits you are owed, which includes fair compensation for your injury. Contact our office at (800) 736-5503 to set up your free initial consultation with one of the attorneys licensed to practice in Iowa. Find out more about the practice at www.rehmlaw.com.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Workers' Compensation and tagged , , , .